1. An illegal sentence under K.S.A. 22-3504(1) is a sentence imposed by a court without
jurisdiction; a sentence which does not conform to the statutory provision, either in the
character or the term of the punishment authorized; or a sentence which is ambiguous
with respect to the time and manner in which it is to be served.

2. A claim that a sentence fails to conform to constitutional requirements is not a claim the
sentence fails to conform to statutory requirements as is necessary to come within the
narrow definition of "illegal sentence" under K.S.A. 22-3504(1).

3. A claim that sentences are multiplicitous is not a claim that the sentences were imposed
by a court without jurisdiction as is necessary to come within the narrow definition of
illegal sentence under K.S.A. 22-3504(1).

4. K.S.A. 22-3504(1) is examined and held not to eliminate a district court's duty to
preliminarily examine a motion to correct an allegedly illegal sentence to determine if
substantial issues of law or fact are raised. If no such issues are found to have been
raised, the motion may be summarily dismissed.

Carl F.A. Maughan, of Maughan Hitchcock Intagliata LC, of Wichita, argued
the cause and was on the
brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola
Tedesco Foulston, district attorney,
and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

McFARLAND, C.J.: Darron Edwards appeals the district court's summary denial of his
pro se motion to correct an illegal sentence, filed pursuant to K.S.A. 22-3504(1). As Edwards'
sentence includes a term of life imprisonment, this court has jurisdiction pursuant to K.S.A.
22-3601(b)(1). See State v. Thomas, 239 Kan. 457, Syl. ¶ 2, 720 P.2d 1059
(1986) (jurisdiction over
appeal of motion to correct illegal sentence lies with court that had jurisdiction to hear original
appeal).

FACTUAL AND PROCEDURAL BACKGROUND

The facts underlying Edwards' convictions are set out in State v. Pratt, 255
Kan. 767, 876
P.2d 1390 (1994), the direct appeal of Edwards' codefendant. In September 1991, Edwards and
Pratt entered the Wichita residence of 64-year-old M.C. and her 92-year-old mother, R.C. M.C.
was beaten by Pratt, and Edwards raped and sodomized her. Pratt ransacked the home for
valuables. The pair forced both women into M.C.'s automobile, and Edwards drove them to
Emporia. Pratt got out of the vehicle before it left Wichita. On the way to Emporia, Edwards
attempted to again rape M.C. 255 Kan. at 767, 770-71. Additionally, Edwards continued on to
Emporia and raped M.C. again while in Lyon County.

Pursuant to a plea bargain, defendant pled guilty to eight felonies, for which he received
the sentences to which he had agreed. Specifically, the crimes and sentences were as follows:

Count 1, aggravated kidnapping, life term

Count 2, aggravated kidnapping, life term

Count 3, rape, 15 years to life

Count 4, aggravated criminal sodomy, 15 years to life

Count 5, aggravated burglary, 5 to 20 years

Count 6, attempted rape, 5 to 20 years

Count 7, aggravated battery, 5 to 20 years

Count 8, rape, 15 years to life

Counts 1, 2, 3, and 4 were ordered to run concurrent with each other, which established
one life sentence as the controlling term. Counts 5, 6, and 7 were ordered to run concurrent with
each other, for a term of 5 to 10 years, but consecutive to the sentence for counts 1 through 4.
The 15 years to life term on count 8 was ordered to run consecutive to those in Counts 5, 6, and
7. State v. Edwards, 254 Kan. 489, 867 P.2d 355 (1994).

Prior to the filing of the motion herein, Edwards had filed 12 other postconviction
motions and original actions. The basic theme of these prior proceedings was to obtain the relief
of reduction of the aggravated kidnapping convictions to simple kidnapping based primarily on
the complaint's failure to allege bodily harm to the victims. As noted in a Court of Appeals
unpublished opinion, the defendant has made numerous attempts "to put a new cover on a worn
out issue." State v. Edwards, No. 85,355, unpublished opinion filed January 25,
2002.

In the case before us, Edwards is seeking the same relief–reduction of the
aggravated
kidnapping convictions to simple kidnapping for alleged problems with the bodily harm element.
With this new cover on the issue, Edwards now contends the bodily harm came at least partially
from the aggravated battery, attempted aggravated criminal sodomy, attempted rape, and the two
rapes. He, therefore, concludes there is a multiplicity problem that renders his sentences for
aggravated kidnapping illegal.

The district court summarily dismissed this action as being an abuse of remedy and
improper use of K.S.A. 22-3504(1). Defendant appeals therefrom. He also contends summary
dismissal was inappropriate as K.S.A. 22-3504(1) requires the appointment of counsel and the
setting of the motion for hearing.

ILLEGAL SENTENCE STATUTE

Before consideration of the issue on the merits, we must first determine whether the
multiplicitous claims fit within the definition of "illegal sentence" as contemplated by K.S.A.
22-3504(1).

To constitute an illegal sentence under the statute, the sentence must be a sentence
imposed by a court without jurisdiction; a sentence which does not conform to the statutory
provision, either in the character or the term of the punishment authorized; or a sentence which is
ambiguous with respect to the time and manner in which it is to be served. State v.
Gayden, 281
Kan. 290, Syl. ¶ 1, 130 P.3d 108 (2006).

This court has repeatedly held that K.S.A. 22-3504(1) has very limited applicability.
State v. Gayden, 281 Kan. at ___.

DISCUSSION

Defendant argues his aggravated kidnapping convictions and sentences are multiplicitous
and, accordingly, are "illegal sentences" under the definition because:

(1) The sentences do not conform to the "statutory provision;" and

(2) the court was without jurisdiction to sentence defendant for aggravated
kidnapping.

Defendant does not contend his claim comes within the third prong of the definition, that
is, the sentence is ambiguous.

We shall first consider whether the multiplicity claim fits within the statutory provision
prong of the illegal sentence definition. In Gayden, Gayden sought relief under this
prong on the
basis that the killing of one person and injuring of five others in defendant's shooting spree in a
crowded bar arose from a single wrongful act and, accordingly, multiple punishments were
prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution. Gayden held:

"To meet the definition of an illegal sentence, as defined by this court, the
defendant's
claim must allege that his sentence does not conform to the statutory provision, either in the
character or the term of the punishment authorized. This court has held that K.S.A. 22-3504(1)
has very limited applicability. State v. Johnson, 269 Kan. 594, 602, 7 P.3d 294
(2000). A
sentence is illegal only if it fits within the definition. A claim that a sentence fails to conform to
constitutional requirements is not a claim it fails to conform to statutory
requirements. Thus, the
defendant's claim does not fit within the limited, narrow definition of an illegal sentence." 281
Kan. at ___.

"Statutory provision" as applicable to K.S.A. 22-3504(1) is the statute defining the crime
and assigning the category of punishment to be imposed. For example, aggravated criminal
sodomy, to which defendant pled guilty, was defined in K.S.A. 21-3506 (1988 Ensley) and
categorized as a Class B felony. There is no claim that defendant was not sentenced in
conformity with the statutory provisions defining each of the eight felonies.

Gayden is dispositive of this issue.

Next we will consider whether the first prong of the illegal sentence definition, "a
sentence imposed by a court without jurisdiction," is applicable under the claims made herein.
Gayden, 281 Kan. 290, Syl. ¶ 1. Again, the claim is that the aggravated
kidnapping convictions
are multiplicitous with some of the lesser convictions as they supply the bodily harm element for
aggravated kidnapping convictions.

The Double Jeopardy Clause protects individuals from (1) a second prosecution for the
same offense after acquittal, (2) a second prosecution for the same offense after conviction, and
(3) multiple punishments for the same offense. State v. Rayton, 268 Kan. 711, 724,
1 P.3d 854
(2000). The defendant contends that alleged violation of the Double Jeopardy Clause's
prohibition against multiple punishments for the same offense deprived the district court of
jurisdiction to impose sentence on the two aggravated kidnapping convictions.

We disagree.

Jurisdiction is acquired in a criminal case upon the filing of a complaint, indictment, or
information. State v. Brown, 280 Kan. 898, 901, 127 P.3d 257 (2006).

"As long as the complaint, indictment, or information alleges the elements of the offense
intended
to be charged, sufficiently apprises the defendant of the facts he or she must be prepared to meet,
and is specific enough to determine a subsequent plea of double jeopardy, the district court has
subject matter jurisdiction. State v. Sims, 254 Kan. 1, 9, 862 P.2d 359 (1993)." 280
Kan. at 901.

As previously noted, the complaint filed herein did not specifically allege that the victims
of the two aggravated kidnappings suffered bodily harm. That defect underlies the claims made
in the 12 prior postconviction proceedings. It has been repeatedly judicially determined that,
notwithstanding this defect, defendant was properly convicted of and sentenced on two counts of
aggravated kidnapping upon his plea of guilty under the circumstances herein.

The complaint on its face and as previously determined on judicial review is sufficient
under Brown for the district court to acquire jurisdiction. There is no doubt it is
specific enough
to permit a determination of a subsequent plea of double jeopardy should the State attempt to
charge Edwards again with any of the eight felonies for which he has been convicted.

This issue raises a question that was not raised or answered in Gayden;
whether sentences
imposed for multiplicitous convictions in violation of double jeopardy are "sentence[s] imposed
by a court without jurisdiction," as contemplated by the definition of an illegal sentence.
Gayden, 281 Kan. at ___.

While this precise issue has not been addressed directly, the Court of Appeals in
State v.
Esher, 22 Kan. App. 2d 779, 781, 922 P.2d 1123, rev. denied 260 Kan. 997
(1996), overruled on
other grounds, State v. Schoonover, 281 Kan. ___, 133 P.3d 48 (2006), held
that multiplicity is
not a jurisdictional defect. To reach that conclusion, the panel noted that the remedy imposed for
multiplicitous convictions is to vacate one of the convictions - a remedy not possible if
multiplicity deprived the district court of jurisdiction. 22 Kan. App. 2d at 781-82.

This analysis is supported by the remedy imposed for the multiplicitous aggravated
kidnapping and sex crime convictions in State v. Robbins, 272 Kan. 158, 32 P.3d
171 (2001), and
State v. Garcia, 272 Kan. 140, 32 P.3d 188 (2001). Holding that the charge of
aggravated
kidnapping was the multiplicitous offense, the court in each case vacated the aggravated
kidnapping conviction and sentence and remanded for resentencing on the lesser included offense
of simple kidnapping. Robbins, 272 Kan. at 187-8; Garcia, 272 Kan. at
147.

That result would not be possible if multiplicity were a jurisdictional defect, as lack of
jurisdiction for the greater offense would have precluded a conviction for the lesser offense.
Cf.
State v. Shumway, 30 Kan. App. 2d 836, 850, 50 P.3d 89, rev. denied
274 Kan. 1117 (2002) ("If
a district court possesses jurisdiction over an offense charged in a complaint, it equally possesses
jurisdiction to convict the defendant of a lesser included offense."); see also State v.
Belcher, 269
Kan. 2, 8, 4 P.3d 1137 (2000) (quoting State v. Horn, 20 Kan. App. 2d 689, Syl.
¶ 1, 892 P.2d
513, rev. denied 257 Kan. 1094 [1995]) ("'[I]f a crime is not specifically stated in the
information
or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to
convict a defendant of the crime.'").

Further, the idea that a court lacks jurisdiction to impose sentences for multiplicitous
convictions is contradicted by the rule that a defendant who enters a voluntary plea of guilty
waives the right to subsequently assert a double jeopardy attack on his or her sentences.
United
States v. Broce, 488 U.S. 563, 102 L. Ed. 2d 927, 109 S. Ct. 757 (1989).

In Broce, the defendants pled guilty to two counts of conspiring to rig bids, in
violation of
the Sherman Act, 15 U.S.C. § 1 (2000). The charges arose out of two Kansas highway
construction projects in 1978 and 1979. 488 U.S. at 565. In a separate case, another highway
contractor, Beachner, was acquitted of a bid rigging conspiracy charge involving a third Kansas
highway construction project. After that acquittal, the government charged Beachner with three
other bid rigging conspiracies involving three different Kansas highway projects. Beachner
moved to dismiss the charges, arguing that the bid rigging arrangements were part of an single
overarching conspiracy among highway contractors during the relevant time period. Beachner
argued that, because it had been acquitted in the previous case, the new charges for the same
conspiracy violated double jeopardy. 488 U.S. at 566-67. The district court agreed and granted
Beachner's motion to dismiss.

Thereafter, the Broce defendants filed a motion attacking their sentences
under Federal
Rule of Criminal Procedure 35(a), which, at that time, provided for the correction of an illegal
sentence at any time. They claimed that because their conspiracy convictions arose out of a
single conspiracy, their convictions were multiplicitous and the sentences imposed were illegal in
violation of the Double Jeopardy Clause. United States v. Broce, 753 F.2d 811, 813
(10th Cir.
1985). The district court denied the motion, holding that the defendants' guilty pleas admitted
two separate conspiracies, barring them from subsequently asserting the contrary. 488 U.S. at
567-68. The Tenth Circuit reversed, rejecting the government's argument that the defendants'
guilty pleas waived their right to assert a double jeopardy claim. 488 U.S. at 568.

On appeal, the United States Supreme Court reversed the Tenth Circuit and held that a
defendant who enters a guilty plea waives the right to assert a collateral attack on his or her
sentences on the basis that the convictions were multiplicitous and the sentences imposed
violated double jeopardy:

"A plea of guilty and the ensuing conviction comprehend all of the factual and
legal
elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.
Accordingly, when the judgment of conviction upon a guilty plea has become final and the
offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the
underlying plea was both counseled and voluntary. If the answer is in the affirmative then the
conviction and the plea, as a general rule, foreclose the collateral attack. There are exceptions
where on the face of the record the court has no power to enter the conviction or impose the
sentence." Broce, 488 U.S. at 569.

Broce has been adopted in Kansas. In Thompson v. State, 23
Kan. App. 2d 305, 929 P.2d
803 (1996), discussed in more detail below, the Court of Appeals applied Broce and
held that a
guilty plea waives all nonjurisdictional defects, including a claim of double jeopardy. 23 Kan.
App. 2d 305, Syl. ¶ 2. The panel also relied on In re Habeas Corpus Application of
Coulter, 18
Kan. App. 2d 795, 860 P.2d 51 (1993). In that case, the Court of Appeals held that a guilty plea
waived the right to assert a double jeopardy claim on collateral attack. Chief Judge Briscoe,
writing for the panel, cited Broce and K.S.A. 22-3208(4):

"K.S.A. 22-3208(4) provides in pertinent part:

'A plea of guilty or a consent to trial upon a complaint, information or
indictment shall constitute a waiver of defenses and objections based upon the
institution of the prosecution or defects in the complaint, information or
indictment other than it fails to show jurisdiction in the court or to charge a
crime.'

"If an individual pleads guilty in a prosecution, that individual generally waives the right
to claim
that the prosecution constituted double jeopardy. United States v. Broce, 488 U.S.
563, 574-75,
102 L. Ed. 2d 927, 109 S. Ct. 757 (1989). See Cox v. State, 197 Kan. 395, 402, 416
P.2d 741
(1966) (even if double jeopardy is raised as a defense, it is abandoned by a subsequent plea of
guilty, and a claim of double jeopardy is not available in a subsequent habeas corpus action)." 18
Kan. App. 2d at 797.

Because a guilty plea waives all nonjurisdictional defects, including claims of double
jeopardy, multiplicity is not a jurisdictional defect.

We therefore conclude a claim that sentences are multiplicitous is not a claim that the
sentences were imposed by a court without jurisdiction as is necessary to come within the narrow
definition of illegal sentence under K.S.A. 22-3504(1).

Most of Edwards' brief is devoted to claimed error in the district court's summary
dismissal of his motion to correct an illegal sentence.

K.S.A. 22-3504(1) provides:

"The court may correct an illegal sentence at any time. The defendant shall
receive full
credit for time spent in custody under the sentence prior to correction. The defendant shall have
a
right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to
have the assistance of counsel in any proceeding for the correction of an illegal sentence."

Defendant contends the language in the statute is mandatory and that, accordingly, the
summary dismissal was erroneous. In State v. Duke, 263 Kan. 193, 195-96, 946
P.2d 1375
(1997), a like issue was raised. We reasoned:

"The language authorizing preliminary judicial examination to determine whether
or not
substantial questions of law or fact are raised appears in K.S.A. 22-4506, which provides in
pertinent part:

'(a) Whenever any person who is in custody under a sentence of
imprisonment upon conviction of a felony files a petition for writ of habeas
corpus or a motion attacking sentence under K.S.A. 60-1507 and files with such
petition or motion such person's affidavit stating that the petition or motion is
filed in good faith and that such person is financially unable to pay the costs of
such action and to employ counsel therefor, the court shall make a preliminary
examination of the petition or motion and the supporting papers.

'(b) If the court finds that the petition or motion presents substantial
questions of law or triable issues of fact and if the petitioner or movant has been
or is thereafter determined to be an indigent person as provided in K.S.A. 22-4504 and
amendments thereto, the court shall appoint counsel . . . .'

"Our decisions have been quite uniform in upholding the propriety of such
preliminary
examinations on all post-trial motions filed later than 10 days after trial. There is no indication
that a motion to correct an illegal sentence was intended by the legislature to be treated
differently
from a K.S.A. 60-1507 attack upon a sentence. Logic does not require a different treatment. What
purpose is served if, unlike another post-trial motion, the filing of a bare-bones conclusory
motion
to correct an allegedly illegal sentence triggers a full-blown hearing with defense counsel and the
presence of the defendant? We believe the key words in K.S.A. 22-3504(1) relative to the issue
before us are 'any proceeding.' The district court should make the preliminary examination as to
whether substantial questions of law or fact are raised. If the findings are in the negative, the
court
should summarily deny the motion. This is not a 'proceeding' within the language of the statute. If
the findings are in the affirmative, then the matters can only be resolved in a 'proceeding' as set
forth in the statute.

"The motions herein were filed long after the sentences were imposed and direct
appeals
determined. The issues would not arise if the motion is filed so close in time to the imposition of
sentence that it is a continuation of the representation afforded at the sentencing.

"In summary, we hold K.S.A. 22-3504(1) does not eliminate a district court's duty
to
preliminarily examine a motion to correct an allegedly illegal sentence to determine if substantial
issues of law or fact are raised. If no such issues are found to have been raised, the motion may
be
summarily dismissed."

We then concluded that no abuse of discretion had been shown in the district court's
summary dismissal of the motion to correct an illegal sentence.

Edwards argues that Duke was wrongly decided and the language of the
statute is
mandatory. We adhere to our holding in Duke.

In the alternative, Edwards argues that his motion raised significant legal and factual
issues and that the district court's dismissal after preliminary examination constituted an abuse of
judicial discretion.

We disagree. The district court held that the motion was an "[a]buse of remedy" and
"[i]mproper use of K.S.A. 22-3504(1)." In other words, the district court made a preliminary
examination and concluded that the grounds for relief sought in the motion did not fit within the
limited, narrow definition of "illegal sentence." We agree and find no abuse of discretion in that
determination.